Occupiers Liability Act 1989 Amendment

by Mary MacGregor

(written 1990 published Beef in B.C. July/Aug 90)

The Occupiers Liability Act (B.C.) is a British Columbia statute which describes the level of care or responsibility that people who own, lease, or otherwise “occupy” property (“premises”) owe to people who may enter on those premises.

“Occupiers” are people who are in physical possession of premises or who have responsibility for and control over the condition of premises, the activities conducted on those premises and the persons allowed to enter the premises. There may be more than one occupier of the same premises.

The Act describes the occupier’s “duty of care” or level of responsibility to others in section 3. The whole of section 3 is set out below, including section 3(3), which was included in the Act by an amendment in 1989.

An occupier of premises owes a duty to take that care that in all the circumstances of the case is reasonable to see that a person, and his property, on the premises, and property on the premises of a person, whether or not that person himself enters on the premises, will be reasonably safe in using the premises.

The duty of care referred to in subsection (1) applies in relation to the

condition of the premises;

activities on the premises; or

conduct of third parties on the premises.

Notwithstanding subsection (1), an occupier has no duty of care to a person

in respect of risks willingly accepted by that person as his own risks, or

who enters premises that the occupier uses primarily for agricultural purposes and who would be a trespasser under the Trespass Act (B.C.),

other than a duty not to

create a danger with intent to do harm to the person or damage to his property, or

act with reckless disregard to the safety of the person or the integrity of his property.

Nothing in this section relieves an occupier of premises of a duty to exercise, in a particular case, a higher standard of care which, in that case, is incumbent on him by virtue of an enactment or rule of law imposing special standards of care on particular classes of person.

The Legislature in passing the amendment (subsection 3(3) above) said that the section “establishes a lower duty of care where a person trespasses, within the meaning of the Trespass Act, on agricultural land”.

To understand the meaning of the amendment, one must first understand the Occupiers Liability Act itself. The Act says that an occupier must take reasonable care for the safety of people (and their property) who may come upon his land. An occupier owes a higher duty of care to certain categories of people such as people who are invited onto the property, rescuers, and children, and a lower duty of care to others, such as people who enter on the land without permission to do so. The person entering the land also has a duty to take due care for his own safety.

There have been many lawsuits under the Act. Many involve slips and falls in retail stores, and accidents concerning stairs, railings, and unlit areas. Pools, waterslides, and bars also seem to be dangerous places to be. Many of these cases are dismissed; that is, the injured person loses the case. Although there has been the occasional heavily publicized case when the court outcome seems unjust, common sense usually prevails.

A few illustrations may show what level of responsibility is imposed, in various cases, by the legislation.

There is an especially high duty of care towards a rescuer. In one case three men were killed from noxious gases from a silo. The owner of the farm first allowed his father to enter a silo and then when the father collapsed, went in himself to rescue his father, without turning on the blower that would have ventilated the silo. Both men lapsed into unconsciousness (and subsequently died). A third man went into the silo to save them and also became unconscious and died. The estate of the farmer was liable to the estate of the rescuer on the basis that the farmer had not satisfied the duty of care on him to take precautions that he knew were reasonable and prudent to dispel the noxious gases before entering the silo. The court held that the rescuer acted reasonably in the circumstances.

In a case where an 18-month old child was injured by falling into an old well, the landowner, who had rented the house to the child’s parents, was liable because he had failed to warn the parents of the existence of the well. The well was covered by a pumphouse and was not visible to the parents. The child fell into the well through a hole beside the pumphouse. The land owner was aware of the dangerous situation and failed to provide a proper warning to his tenants.

In another case, an Exhibition Association which left an unmarked excavation at or near the edge of an unlit footpath across a public fairgrounds and racetrack, knowing that the path was used during the hours of darkness by entitled users, was held to be negligent. The court said that the Association should have placed barriers, warnings or lighting to warn users of the danger.

However, guests at summer cottages should not expect the same standard of safety as exists in the city. “Experience indicates that conditions in a summer camp are often more primitive—and indeed more dangerous—than normally acceptable in an urban center” and a guest in that situation should be especially vigilant to observe the increased risks and to act accordingly to protect his or her physical well-being.

The ordinary duty on an occupier of lands with respect to a trespasser, is one of “common humanity” and no more. One may not set dangerous traps for trespassers without liability for their injuries. Children especially may be attracted to things which may be dangerous for them, such as swimming pools, old buildings, or equipment. The wise property owner will take reasonable steps to prevent children from gaining access to his property and to warn children (who are of an age to understand the warning) and their parents of the danger.

The danger must also be reasonably foreseeable, so that an occupier was not liable when a stairway collapsed from dry rot, which was unknown to the occupier and would not have been revealed by a normal inspection.

“If there are limits beyond which occupiers should not be responsible for protecting people from their own stupidity” those limits were exceeded by an adult male who, at 2 a.m., ignored and climbed over signs clearly stating that a waterslide was “closed”, proceeded to use the slide and injured himself. “Too bad”, said the judge, “case dismissed”.

What advantage does the new wording of section 3(3) confer on the occupier? It says that the occupiers has no duty of care to someone who is a trespasser under the Trespass Act and who enters on premises which the occupier uses mainly for agricultural purposes, except that the occupier should not intentionally create a danger to harm the person entering (or that person’s property), nor should the occupier act with reckless disregard to the safety of the person or his property.

You have to meet a lot of conditions to fit under this subsection. A trespasser under the Trespass Act is a person found inside enclosed land without the consent of the owner, lessee or occupier.

“Enclosed land” includes land that is either surrounded by a lawful fence defined by or under the Trespass Act OR surrounded by a lawful fence and a natural boundary or by a natural boundary alone OR posted with signs prohibiting trespass in accordance with section 4.1 of the Trespass Act.

A lawful fence (for all purposes other than dividing a railway right-of-way from other land or for protecting a stack of hay or grain) is a hedge or fence substantially constructed from the ground to a height of at least 4 feet 6 inches. There are a variety of permitted materials, all carefully specified as to nature and spacing. For example, one type of wire fence is as follows; barbed wire no less than 12½ guage secured to posts not more than 24 feet apart, lowest wire no more than 14 inches from the ground, wires no more than 9 inches apart to 32 inches from the ground an not more than 11 inches apart above that height, and being interlaced with droppers at intervals of not more than 6 feet. The other fence specifications are in the regulations to the Trespass Act. “Suitably constructed” gates, cattleguards, riverbanks, lakes, ponds, rivers or seas if sufficient to keep cattle out, also constitute a lawful fence.

The sign posting provision in section 4.1 of the Trespass Act is an alternative to using a legal fence to define enclosed land. Section 4.1 says that a sign prohibiting trespass shall be posted at each ordinary access to the enclosed land and shall be posed so that it is clearly visible and writing on it is clearly legible in daylight and under normal weather conditions, from the approach to the access where the sign is situated. Substantial (as opposed to exact) compliance is sufficient to show that the land is enclosed land.

You can see from the above definitions that in most situations your best chance of showing that land is “enclosed land” is in posting it “no trespassing”. Someone on the land without permission is then a trespasser under the Trespass Act.

The occupier must then not intentionally create a danger to harm the trespasser, nor to act with reckless disregard to the safety of the person or the integrity of his property.

An example of an act that would breach the “intentional danger” provision would be setting up a shotgun to fire if someone trips a wire, or literally setting a trap that someone might fall into if he trespassed on your land. (The Indiana Jones movie series are full of examples which would fall into this category.)

An example of an act that would breach the “reckless disregard” provision would be to dig a four-foot ditch through a private roadway over your property, when you know people drive over at night, without in any way trying to warn people or prevent them from driving into the ditch.

In the absence of an act or omission which would fit into these two categories, the occupier has no duty to look out for trespassers, PROVIDED that the occupier can show that the injured person is a trespasser under the definition in the Trespass Act.

What does the prudent landowner do? The most practical advice is to consider who might reasonably be injured by a dangerous situation on land that you occupy, and either correct the situation or warn people who may enter the land about the danger. To give oneself a further measure of legal protection against trespassers, post your land “no trespassing” according to section 4.1 of the Trespass Act, set no deliberate traps for trespassers, and do not create flagrantly dangerous situations.